United States v. Irizarry-Sanabria

Opinion

USCA1 Opinion

[NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT


____________________



          No. 95-1236



                                    UNITED STATES,



                                      Appellee,



                                          v.



                              AMADOR IRIZARRY-SANABRIA,



                                Defendant - Appellant.



                                 ____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF PUERTO RICO



                  [Hon. Carmen Consuelo Cerezo, U.S. District Judge]
                                                ___________________



                                 ____________________



                                        Before



                               Torruella, Chief Judge,
                                          ___________



                          Boudin and Stahl, Circuit Judges.
                                            ______________



                                _____________________



               J.  Michael McGuinness,  by Appointment  of  the Court,  for
               ______________________

          appellant.

               Jos   A. Quiles-Espinosa,  Senior  Litigation Counsel,  with
               ________________________

          whom Guillermo  Gil, United  States Attorney,  and Nelson  P rez-
               ______________                                ______________

          Sosa,  Assistant  United  States  Attorney,  were  on  brief  for
          ____

          appellee.


____________________



                                   August 22, 1996

                                 ____________________



Per  curiam.     Defendant-Appellant  Amador  Irizarry-
                    Per  curiam.
                    ___________



          Sanabria  pled guilty to conspiracy to  import marijuana into the



          United  States, in violation of 21 U.S.C.     952 & 963.  For the



          reasons stated herein, we affirm.



                                      BACKGROUND
                                      BACKGROUND



                    Irizarry-Sanabria  was indicted  in  March of  1993 and



          pled not guilty  at his  arraignment.  His  motion to dismiss  on



          double jeopardy  grounds, premised  on a  previous conviction  of



          conspiracy to import  marijuana,1 was denied.   In October  1993,



          Irizarry-Sanabria entered a change of  plea to guilty pursuant to



          a plea  agreement.  In  December 1993, he  filed a pro  se motion
                                                             _______



          seeking a  withdrawal of that plea; his counsel filed a motion in



          support of  the pro se motion  and memorandum of law  in February
                          ______



          1994.   The district  court denied the  motion to  withdraw plea,



          without an  evidentiary hearing.  Irizarry-Sanabria was sentenced



          to 121 months imprisonment.



                                      DISCUSSION
                                      DISCUSSION



                          A.  Motion to Withdraw Guilty Plea
                          A.  Motion to Withdraw Guilty Plea
                              ______________________________



                    We  review the  court's refusal  of Irizarry-Sanabria's



          motion to withdraw his guilty plea, made prior to sentencing, for



          abuse of discretion.   See United States v. Tilley,  964 F.2d 66,
                                 ___ _____________    ______



          72 (1st Cir. 1992).  To prevail,  Irizarry-Sanabria must persuade



          the  court that  he has shown  a "fair  and just reason"  for his



          request.  Fed. R. Crim. P. 32(e).   We follow an establishedtest:



                              
          ____________________



          1  His conviction for the  first conspiracy was affirmed by  this

          court in United States v. And jar, 49 F.3d 16 (1st Cir. 1995).
                   _____________    _______



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A court must  consider several factors in

                      weighing whether  a defendant  meets this

                      burden,

                         the  most significant  of which  is

                         whether  the   plea  was   knowing,

                         voluntary  and  intelligent  within

                         the  meaning  of [Federal  Rule  of

                         Criminal Procedure] 11.   The other

                         factors include:  1) the force  and

                         plausibility   of   the   proffered

                         reason;  2)   the  timing   of  the

                         request; 3)  whether the  defendant

                         has asserted  his legal  innocence;

                         and  4)  whether  the  parties  had

                         reached a plea agreement. 



          United States v. Isom, 85 F.3d 831, 834 (1st Cir. 1996)  (quoting
          _____________    ____



          United States v.  Cotal-Crespo, 47 F.3d 1, 3-4  (1st Cir.), cert.
          _____________     ____________                              _____



          denied, __ U.S. __, 116 S. Ct. 94 (1995) (citation omitted)).  If
          ______



          defendant meets the rigors of  this test, we evaluate whether the



          government will suffer any demonstrable prejudice.  See id. 
                                                              ___ ___



                    First, we find,  and counsel for defendant  admitted at



          oral argument,  that the Rule  11 plea colloquy was  thorough and



          comprehensive.    Irizarry-Sanabria  argues  that  his  plea  was



          nonetheless not knowing, voluntary and intelligent because it was



          made under duress, due to the pressure of his attorney.  However,



          during  the colloquy, Irizarry-Sanabria  denied that he  had been



          coerced  to accept  the  plea bargain,  acknowledged that  he had



          discussed its  terms  with  counsel, and  affirmed  that  he  was



          satisfied with  his legal  representation.   "Such statements  in



          open court during  a plea hearing 'carry a  strong presumption of



          verity.'"  United  States v.  Mart nez-Molina, 64  F.3d 719,  733
                     ______________     _______________



          (1st Cir. 1995)  (quoting Blackledge v. Allison, 431  U.S. 63, 74
                                    __________    _______



          (1977)).  The pro se motion offers nothing more than a conclusory
                        ______


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statement  that the  plea  was  "made under  duress,  due to  the



          urgency and  pressure of  all the  [co-defendants'] attorneys  of



          this case,"  including Irizarry-Sanabria's  counsel.   In denying



          the motion, the  district court noted that  Irizarry-Sanabria was



          informed at the change  of plea hearing that he could  proceed to



          trial that  same  day if  he  chose, and  commented  that he  was



          "alert, calm,  confident and  knowledgeable of  his rights,"  and



          "never showed  any hesitancy or  reservation about his  desire to



          plead guilty."   Order at  6.  In  these circumstances, where  we



          have a thorough, comprehensive Rule  11 colloquy on one hand, and



          a naked conclusory claim of duress unsupported by any allegations



          of fact on  the other, we find that Irizarry-Sanabria's eleventh-



          hour claim of  duress lacks merit, and accordingly  find that his



          plea was made knowingly, voluntarily and intelligently within the



          meaning of Rule 11.



                    Our  second factor weighs the force and plausibility of



          the proffered reasons.  We have already weighed the duress claim;



          we briefly  examine Irizarry-Sanabria's  other asserted  reasons.



          First, Irizarry-Sanabria claims he is innocent, and that he could



          prove it,  without specifying  anything regarding  the nature  of



          such proof.  At the same time,  during the change of plea hearing



          he corrected the court's account  of the events of the conspiracy



          several times,  clarifying what his  participation had been.   In



          such circumstances, we find that the district court did not abuse



          its discretion  by "refusing  to give weight  to a  self-serving,



          unsupported claim  of innocence."   United  States v.  Ramos, 810
                                              ______________     _____


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F.2d 308, 313 (1st Cir.  1987) (finding that defendant's claim of



          innocence  lacked merit  where  he did  not  assert innocence  at



          change  of plea  hearing and  did not  substantiate his  claim of



          exculpatory  evidence); see  Isom,  85  F.2d  at  837  (rejecting
                                  ___  ____



          defendant's  pro   se   motion  asserting   innocence  where   no
                       ________



          information was provided regarding  alleged exculpatory evidence,



          and  defendant provided specific information regarding the events



          of the crime at Rule 11 hearing).  



                    Second, Irizarry-Sanabria's claim that  he did not have



          access to the files on the case gives us little pause,  given the



          thoroughness of the  Rule 11 hearing and the  fact that Irizarry-



          Sanabria does not offer any indication of what he expects to find



          in the files, or what prejudice  he has suffered.  Similarly, his



          claim that his requests for  legal assistance "in this matter" --



          presumably, his motion  and claim of innocence and  duress -- had



          been to no avail is unconvincing, as his attorney followed up the



          pro se motion with a motion in support and memorandum of law.  
          ______



                    As for  the timing  of  the motion,  almost two  months



          elapsed between the  change of plea hearing on  October 21, 1993,



          and Irizarry-Sanabria's pro  se motion of December 15,  1993.  We
                                  _______



          have   previously  found  that   such  a  delay   weighs  against



          defendant's position.2   See,  e.g., Isom, 85  F.3d at  839 (two-
                                   ___   ____  ____



                              
          ____________________



          2   Appellant  argues that  this  measure ignores  the fact  that

          Irizarry-Sanabria's  change of heart undoubtedly occurred at some

          time prior to the date of service.  Nonetheless, in such cases we

          take as our measure the date of  the motion to withdraw the plea,

          regardless  of  when  the  defendant's  subjective  decision  was

          actually made.  See Isom, 85 F.3d at 838-39 (collecting cases).
                          ___ ____



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month delay);  United States  v. Pellerito,  878 F.2d  1535, 1541
                         _____________     _________



          (1st Cir. 1989) (eight week  delay); United States v. Crosby, 714
                                               _____________    ______



          F.2d 185, 192  (1st Cir. 1983) (eight week  delay), cert. denied,
                                                              ____________



          464 U.S. 1045 (1984).



                    As for  the final  two factors,  we  note, first,  that



          Irizarry-Sanabria has  claimed his innocence.   Nonetheless, "the



          mere protestation of  legal innocence cannot in and  of itself be



          issue-determinative."  United  States v. Kobrosky, 711  F.2d 449,
                                 ______________    ________



          455  (1st  Cir.  1983).    Second, the  parties  reached  a  plea



          agreement, which neither alleges has been broken.



                    As our  analysis of all  the factors weighs  heavily in



          favor  of  the district  court's  decision, we  need  not address



          whether granting  the  motion would  result in  prejudice to  the



          government before affirming the decision below.



                    Irizarry-Sanabria asserts that the district court erred



          in  denying him an  evidentiary hearing to  factually bolster his



          claims.  However, we note that



                      evidentiary hearings  on motions  are the

                      exception,  not   the  rule.     We  have

                      repeatedly  stated  that,   even  in  the

                      criminal  context,  a  defendant  is  not

                      entitled as  of right  to an  evidentiary

                      hearing  on   a  pretrial   or  posttrial

                      motion.    Thus,   a  party  seeking   an

                      evidentiary hearing  must carry  a fairly

                      heavy burden of  demonstrating a need for

                      special treatment.



          United  States  v. McGill,  11  F.3d  223,  225 (1st  Cir.  1993)
          ______________     ______



          (citations  omitted).     Irizarry-Sanabria's   naked  conclusory



          statements offer us no basis  for finding that the district court



          abused  its discretion in  not holding an  evidentiary hearing on



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his  claims.   See, e.g., Ramos,  810 F.2d at  314; Kobrosky, 711
                         ___  ____  _____                     ________



          F.2d at 457; see also Isom, 85 F.3d at 838 (collecting cases).
                       ________ ____



                    On  appeal, counsel  for  defendant  argues that  "most



          individuals" are too intimidated by  the circumstances of a  Rule



          11 plea colloquy to stop and  tell the court that they have  been



          coerced  into pleading  guilty.    Such  generalizations  do  not



          persuade  us that  the district  court  abused its  discretion in



          making its decision -- a  decision "facilitated because the judge



          has  overseen   pretrial  proceedings,  conducted  the   Rule  11



          inquiries, accepted the original guilty  plea, and heard at first



          hand the  reasons bearing upon  its withdrawal."   Pellerito, 878
                                                             _________



          F.2d at 1538.  Indeed, the fact  that during the Rule 11 colloquy



          Irizarry-Sanabria  corrected the court's account of the events on



          several points belies the image of a timid defendant.



                    We are given more pause by appellant's contention, made



          at  oral argument, that  a potential conflict  arises because the



          counsel who Irizarry-Sanabria  alleges put him under  duress also



          helped him litigate the motion for withdrawal of his guilty plea.



          However,  in this  circumstance,  where we  have  a complete  and



          detailed plea colloquy, a detailed order denying the  motion, and



          only  the  most sparse  allegations  on  the  part  of  Irizarry-



          Sanabria, we  cannot  find that  the  district court  abused  its



          discretion,  even taking  into  account  the  pro  se  nature  of
                                                        _______



          Irizarry-Sanabria's motion.



                              B.  Double Jeopardy Claims
                              B.  Double Jeopardy Claims
                                  ______________________



                    Irizarry-Sanabria next  argues that the  district court


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erred in failing to dismiss the indictment against him because he



          had previously  been found  guilty in a  case involving  the same



          conspiracy.  He alleges that  the indictment in this case amounts



          to  prosecuting a single conspiracy as two separate conspiracies,



          in violation of his double  jeopardy guarantee.  However, we find



          that under Local Rule  510.2 of the  District of Puerto Rico,  he



          has waived this  argument by failing to object  to the magistrate



          judge's report and recommendation in  writing within ten days, as



          the  report and  recommendation warned.   See  United States   v.
                                                    ___  _____________



          Valencia-Copete,  792 F.2d  4, 6  (1st Cir.  1986) (after  proper
          _______________



          notice,  failure to  file a  specific  objection to  magistrate's



          report  will  waive the  right  to  appeal);  see,  e.g.,  Henley
                                                        ___   ____   ______



          Drilling Co. v.  McGee, 36 F.3d 143, 151 (1st  Cir. 1994); Borden
          ____________     _____                                     ______



          v. Secretary of  Health and Human  Services, 836 F.2d  4, 6  (1st
             ________________________________________



          Cir. 1987).



                    Although we acknowledge an appellate court's discretion



          to excuse  waiver "in  the interests of  justice," see  Thomas v.
                                                             ___  ______



          Arn, 474 U.S.  140, 155 & n.15  (1986), in this  case we find  no
          ___



          basis   for  such  action  because  we  conclude  that  Irizarry-



          Sanabria's arguments likely would not  prevail on the merits.  We



          weigh  five factors in determining whether two charged conspiracy



          are actually one  for double jeopardy purposes:   the timing; the



          personnel; the locations involved; the evidence used; and whether



          the same statutes  were implicated.  See United  States v. G mez-
                                               ___ ______________    ______



          Pab n, 911 F.2d 847, 860 (1st Cir. 1990), cert. denied,  498 U.S.
          _____                                     ____________



          1074  (1991).   The  only facts  Irizarry-Sanabria  points to  in


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arguing that  there are two  distinct conspiracies here  are that



          they both  involve the  same amount of  marijuana, and  that they



          occurred within several weeks of each other.  However, given that



          it was not  the same shipment of  marijuana, that it was  not the



          same Colombian supplier,  that the only common  participants were



          the  defendant  and  a  confidential informant  Irizarry-Sanabria



          introduced to his co-conspirators, and that the importation route



          was different, see And jar, 49 F.3d at 18-19 (setting out facts),
                         ___ _______



          we  are hard pressed to  see how these  two conspiracies would be



          viewed as one.



                                   C.  Other Claims
                                   C.  Other Claims
                                       ____________



                    Irizarry-Sanabria  also  alleges  that  the  government



          should have  been collaterally estopped  from relitigating  these



          issues.   However,  he does  not  specify what  ultimate fact  he



          contends has  been resolved in  his favor.  Similarly,  he argues



          that   his  substantive  due  process  rights  were  violated  by



          prosecution for  conduct that  he was  already convicted  of, and



          that the totality of the  trial court's errors and the cumulative



          effect  thereof constituted prejudicial  error, depriving  him of



          his  due process,  both without  pointing to any  error.   To the



          extent  that these arguments have  not already been deemed waived



          under our  double jeopardy holding,  we now find them  waived, as



          "[i]t is  not enough merely to mention a possible argument in the



          most skeletal way, leaving the court to do counsel's work, create



          the  ossature for  the argument,  and  put flesh  on its  bones."



          United  States v.  Zannino,  895  F.2d 1,  17  (1st Cir.),  cert.
          ______________     _______                                  _____


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denied,  494 U.S.  1082 (1990); see,  e.g., Damon v.  Sun Co., 87
          ______                          ___   ____  _____     _______



          F.3d 1467, 1485 (1st Cir. 1996).



                                      CONCLUSION
                                      CONCLUSION



                    For  the reasons presented  above, the decision  of the



          district court is affirmed.
                            affirmed
                            ________


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